Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 8 April 2017.
Margaret and Ted separated many years ago but never got around to formalizing a divorce.
They divided their assets amicably which included selling the matrimonial home and dividing the net proceeds equally.
Margaret now resides in a nursing home and was recently diagnosed as suffering from Alzheimer’s disease.
Margaret does not have a will and has lost the capacity to make one.
When Margaret passes away, her estate will be distributed under the rules of intestacy. This means that because she is still married, Ted will receive the whole of her estate.
Margaret and Ted’s children are aware that Margaret’s estate will be paid a refund of a substantial accommodation bond by the nursing home.
Ted’s relationship with the children deteriorated after their parents separated and the children are concerned that Ted will fritter away their inheritance.
The children seek legal advice and are advised that the only way that Margaret can make a will in their favour is for them to apply to the Supreme Court for an order that a “statutory will” be authorized on Margaret’s behalf.
The application must include the reasons for seeking the order, include evidence that capacity has been lost, identify the size of the potential estate, provide evidence of Margaret’s wishes and identify any potential claims on her estate. The application must also include a draft will.
The court can only make an order if satisfied that Margaret is incapable of making a will, the proposed will is reasonably likely to be one that she would have made and that in this case, Ted has been made aware of the application.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
